Suing for medicine

By
Pete Brady
on August 1, 1999

In the last issue of Cannabis Culture we described a US federal class action lawsuit filed by attorney Laurence Hirsch and 165 plaintiffs (see CC #18, US lawsuit challenges med-pot prohibition). The lawsuit alleges that the US government illegally discriminates against medical marijuana users by refusing to reactivate the “Compassionate Investigational New Drug Program” (IND) that currently provides government-grown medical pot to a handful of people. The IND was closed to new patients in 1992.
The alleged discrimination also includes the nationwide filing of criminal charges against medical marijuana users, even in states that have medical marijuana laws. Hirsch’s court filings also claim that marijuana prohibition is unconstitutional.

Affirmation of freedom

The core of Hirsch’s lawsuit contains a double dose of epic legal argument that government lawyers have had trouble countering. Hirsch asserts, using language and caselaw that cuts to the heart of what so many people feel is wrong with prohibition, that the government has no right to regulate citizens’ use of healing herbs.

“I’m a patriot who believes in the ideals and charter documents enshrined by the people who created this country,” Hirsch says. “The right to life, liberty and the pursuit of happiness ? every schoolkid is told that these are inalienable rights granted us by our Creator. How could anybody think that the using medicine with a doctor’s approval is not part of these rights?”

Indeed, Hirsch says, “there is no liberty more firmly established than our right to be free from physical pain which arises from a government’s arbitrary and capricious banning of cannabis as a medical treatment.”

Using US Supreme Court decisions to buttress his argument, Hirsch shows that America’s highest court has consistently ruled that government and laws must not inflict unnecessary pain on citizens. Some death penalty techniques have been ruled unconstitutional because they’d cause extreme suffering. An accident victim was found to have a right to die rather than endure pain, even though government representatives argued otherwise. Terminally ill patients have the right to obtain medical treatment to alleviate pain. A woman has the right to choose abortion rather than endure the pain and hardship of pregnancy and childbirth.

“Many of these rulings made by the Supreme Court affirm that ?every human being of adult years and sound mind has a right to determine what shall be done with his own body.’ [Supreme Court] Justice Stevens argued that a ?sphere of substantive liberty’ includes the right to manage matters ?central to personal dignity and autonomy’ that determine an individual’s fate. Stevens said that the heart of liberty is the ability to ?define one’s own concept of existence, of meaning, and of the mystery of human life.’ Arresting people for medical marijuana mocks the solemn truths that these Justices have articulated,” Hirsch says. “It mocks the principles that this country was founded on.”

Attorney Laurence Hirsch.Dangerous medicine?

Hirsch admits that legal rulings allow the government to demonstrate that it has a “compelling interest” in preventing some medical treatments and activities. But he says that the compelling interest argument has never legitimately been applied to marijuana prohibition.

“The problem is that the government uses a circular argument, based on the faulty assumption that marijuana is a terribly dangerous drug with no medical facility,” Hirsch explains. “So they say that it isn’t a medicine and that it hurts society so much that even if it was a medicine they still could not allow it because the harm to society would outweigh the benefits to individuals using it medically.”

The government’s argument is patently absurd, Hirsch says. Numerous substances, including cocaine, barbiturates, amphetamines, opiates and even the toxic, birth-defect chemical thalidomide are legally available for medical use, even though those substances are far more likely to be abused (and are far more dangerous to users) than marijuana.

“This compelling interest argument only covers the use of medical cannabis in cases where it is the preferred, rather than the only, treatment,” Hirsch says. “When you have people for whom marijuana is the only medicine that will work, the government has to basically prove why a person should be condemned to suffering and possibly death because marijuana is prohibited.”

The recent Institute of Medicine (IOM) report acknowledged that marijuana is the best and only medicine for certain classes of patients, Hirsch notes: “Considering what the IOM found, as well as the preponderance of scientific and anecdotal evidence, it’s impossible for an intelligent, fair-minded person to assert that marijuana is not medicine. Nor has the government offered reliable proof that marijuana abuse poses such a threat to national security that giving it to sick people will substantively endanger our nation.

“All these years, from Reefer Madness onward, they’ve been telling lies about cannabis,” continues Hirsch. “Now their lies have been exposed; everybody knows cannabis is far less toxic even than aspirin, which kills about 2,000 people per year. There has never been a fatal dose of marijuana. Voters in six states, as well as leading scientists, have agreed that marijuana is medicine. The government’s position is not rational or compelling.”

Almost everyone observing the class action lawsuit agrees with Hirsch, who says: “the judge we were blessed with to hear this lawsuit, Judge Marvin Katz, is a rare judge in today’s federal system. He’s compassionate and fair.”

Katz is a former law partner of Pennsylvania Republican Senator Arlen Specter, appointed to the federal bench by arch-conservative President Ronald Reagan in 1983. Reagan and his successor, George Bush, stacked the federal courts and the Supreme Court with extremist conservative judges, many of whom were former prosecutors. Bill Clinton has not counterbalanced this by appointing “liberal” judges, so the federal court system has become an increasingly hostile place for defendants, especially those involved in civil liberties cases that seek to change repressive government policies or establish social equality.

“I have known Judge Katz a long time,” Hirsch says. “It is a blessing from God that he is hearing this action. He is a very mild-mannered person. He’s not an ideologue. He’s in his 70’s, and doesn’t feel the need to succumb to political pressure. He’s Jewish, which means that he is aware of how societies can single out groups of people for unequal treatment. He is not a hater, and he is willing to ask the government attorneys some very hard questions. He is not one of those judges who thinks his job is to be a back-up prosecutor.”

Indeed, Katz has surprised the Department of Justice attorneys by allowing the lawsuit to continue. Transcripts of last year’s hearings reveal that government lawyers offered few substantive challenges to Hirsch’s allegations. Instead, they quibbled with the lawsuit on procedural grounds, blandly asserted that prohibition and the closure of the Compassionate IND were legal, and asked that the lawsuit be dismissed.

At one point, a government lawyer drew hisses and boos from plaintiffs when he stated the tired canard that marijuana had a high potential for abuse and no medicinal value.

Katz chided government lawyers for not providing formal and comprehensive documentation of their arguments as requested, and at one point even suggested to government attorneys that the simplest way to settle the lawsuit would be to open the IND to everyone who qualifies for it.

The government rejected his suggestion. Hirsch says that internal memos from the federal Health and Human Services agency show that the IND was discontinued in part because the government feared that the AIDS epidemic would create so many patients that the government’s pot farm in Mississippi would be unable to produce enough marijuana.

Arguments accepted

Katz has forced the government to take Hirsch’s lawsuit seriously, but he’s also rejected major portions of Hirsch’s historical and constitutional arguments against marijuana prohibition.

Hirsch’s original filing last year argued that marijuana prohibition was illegal because it had never been subjected to a nationwide referendum, as had alcohol prohibition. He also argued that Congress had no right to regulate marijuana, and that the Controlled Substances Act was itself an unconstitutional federal intrusion. Although government attorneys provided little objection to Hirsch’s claims, Katz crafted a well-reasoned, intensely researched rejection of these arguments.

However, Katz did agree with the crux of Hirsch’s argument, that the government has the burden of showing why the distribution of marijuana through the IND for less than ten people does not violate the rights of others with the same medical need for marijuana, who so far have not been allowed to even apply for the program.

Hirsch asserts that the government entered into a binding legal agreement when it contracted to provide the first IND patient, glaucoma victim Robert Randall, with medical marijuana way back in 1978. By doing so, the government admitted that marijuana was medicine; by admitting other people into the IND, it confirmed that people had a right to government marijuana. By cutting off all access to the program, the government created two classes of people: one class which legally gets the medicine it needs, the other which contains people who cannot legally get the same medicine, and instead risk prison for seeking appropriate medical care.

“Now it’s all going to come out,” Hirsch says. “The government is going to have to reveal how it made these decisions. Every single document relating to the IND program will have to be made public. The whole fiction of this prohibition will come crashing down around them.”

Hirsch has to be play many roles as he shepherds medically needy people through the craziness of the American “justice” system. He scripted the basic drama underlying the legal action, pitting 165 sick people against 63 years of prohibition and propaganda. He selected plaintiffs from across the country, a cross-section of medical marijuana patients representing nearly every disease or condition that the herb can heal or mitigate. He supervises the cross-country migration of plaintiffs to the courtroom for important hearings, ensuring that Katz sees a sea of medical marijuana faces when he looks out onto his courtroom.

Along with handling 165 patient-plaintiffs, Hirsch also handles fund-raising chores. Many of his clients are impoverished; he estimates the logistics and pro bono work amount to hundreds of thousands of dollars in lost revenues for him.

And Hirsch still has to do what public interests lawyers must do: hours of research, analysis, strategy planning and writing. Court appearances. Media interviews. Responding to government challenges.

Just recently, the government demanded that every plaintiff provide written answers to a series of comlpex, privacy-busting questions.

Plaintiffs are required to reveal everything about their medical conditions, doctors, treatment and prescription drug regimes, and criminal histories.

The government’s questions, filed as “interrogatories” are extremely intrusive and seem heavily weighted to establish that patients are using “smoked marijuana,” which is mentioned seven times in the twelve questions patients are required to answer.

“It’s clear that this is an attempt to capitalize on the IOM report’s assertion that smoking marijuana is bad for you,” Hirsch says. “It won’t fly. The IOM is flawed in so many ways; they certainly exaggerated the dangers of smoked marijuana, and they ignored the fact that marijuana can also be ingested as a food. The interrogatories do ask patients to specify whether they intend to solely use smoked marijuana or marijuana in other forms. At least they acknowledge it.”

It seems that the government is finally beginning to take Hirsch seriously. The earlier hearings and filings were handled by junior Department of Justice attorneys. The more recent interrogatories were submitted by an assistant attorney general.

Hirsch expects the medical marijuana lawsuit to march forward. Sometime this summer, as many as 165 plaintiffs will get the chance to tell the world, under oath, that marijuana is their medicine, and that the US government has given it to some people while denying plaintiffs the right to produce or use it legally.

Hirsch will provide stacks of historical and scientific documents explaining the origins and horrors of cannabis prohibition, focusing on how it violates basic constitutional guarantees. The government will produce faulty reports and incomplete records which reveal that the Compassionate IND was arbitrarily closed, and that continuing medical marijuana prohibition is cruel and unusual punishment.

“We have found a way to put all of the prohibitionists, liars and drug warriors on trial,” Hirsch says. “At the base of this are two rock solid principles. One is that people have the right to control their own bodies. The other is that the government cannot harm innocent people. I predict that the judge will grant summary judgment by the end of 1999.

“We will end up in the Supreme Court, and we will win. I have written my arguments using the words of the current members of that most respected panel of jurists, and I don’t think they will reverse their own rulings to keep sick people from getting their medicine.”

Joining forces

As word of Hirsch’s lawsuit spread, patients and other attorneys became interested in assisting the landmark case.

“At first, a lot of people didn’t know what to make of this lawsuit,” Panzer said. “People were wondering is Larry Hirsch a genius or is he just another guy with a misguided and futile idea of what might work. But when I examined what he was doing and saw the court’s favorable response to what he was filing, I was impressed. This action has a good team working on it, and I think the court is going to see that our legal arguments are solid and compelling.”Kentucky political candidate and attorney Gatewood Galbraith.

? Donations can be sent to Lawrence Hirsch, 1735 Market St, Philadelphia, PA 99103.
? Updates on the lawsuit are online at www.fairlaw.org.